M.H. Earthmoving Pty Ltd v Cootamundra-Gundagai Regional Council (No 3)

[2018] NSWLEC 1502

Land and Environment Court

New South Wales

Medium Neutral Citation:	M.H. Earthmoving Pty Ltd v Cootamundra-Gundagai Regional Council (No 3) [2018] NSWLEC 1502
Hearing dates:	15 – 18 August 2018; written submissions 23 & 27 August and 3 September 2018
Date of orders:	27 September 2018
Decision date:	27 September 2018
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that:  (1)   The appeal is dismissed; (2)   Development Application DA/242/2017 for the expansion of an existing General Solid Waste (non-putrescible) disposal facility at Lots 472 and 502 DP 751421 and Lot 2 DP 111917, 303 Burra Road, Gundagai is refused. (3)   The exhibits are returned with the exception of A, B, 1, 2 and 3.
Catchwords:	DEVELOPMENT APPLICATION: Appeal of refusal by Planning Panel – proposed expansion of landfill– Designated Development– whether the development will impact on ground water– precautionary principle–whether the development poses an unacceptable risk to downstream waters– weight to future risk of failure– suitability of the site– balance benefits of the proposal–public interest.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Gundagai Local Environmental Plan 2011 Land and Environment Court Act 1979 Protection of the Environment Operations Act 1979 State Environmental Planning Policy No 33 – Hazardous and Offensive Development State Environmental Planning Policy No 55 –Remediation of Land State Environmental Planning Policy (Infrastructure) 2007 State Environment Planning Policy (Seniors Living) 2004 State Environmental Planning Policy (State and Regional Development) 2011 Tweed Local Environmental Plan 2000 Visy Mill Facilitation Act 1997 Water Management Act 2000
Cases Cited:	Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; 155 LGERA 52 Coffs Harbour Environment Centre Inc v Minister for Planning (1994) 84 LGERA 324 Hastings Point Progress Association v Tweed Shire Council & Anor (2009) 168 LGERA 99 Hub Action Group Incorporated v Minister for Planning and Orange City Council [2008] NSWLEC 116 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Mansfield v Minister for Planning and Hanson Construction Materials Pty Ltd [2012] NSWLEC 1063 Stocklands v Manly Council (2004) 136 LGERA 254 Telstra Corporation Limited v Hornsby Shire Council (2006) 146 LGERA 10
Texts Cited:	Environmental Guidelines Solid Waste Landfills by NSW Environment Protection Authority, Second Edition, 2016 Landfilling: EIS Guideline by Department of Urban Affairs and Planning, 1996 Managing Land Contamination Planning Guidelines SEPP 55–Remediation of Land, NSW EPA 1998 Macquarie Dictionary
Category:	Principal judgment
Parties:	M.H. Earthmoving Pty Ltd (Applicant) Cootamundra Gundagai Regional Council (First Respondent) Southern Regional Planning Panel (Second Respondent)
Representation:	Counsels: T Howard SC (Applicant) C Novak (Applicant) C Leggat SC (Second Respondent) S Nash (Second Respondent)   Solicitors: Bradley Allen Love Lawyers (Applicant) Louise McAndrew, Department of Planning (Second Respondent)
File Number(s):	2018/00007966
Publication restriction:	No

Judgment

Nature of Appeal and Outcome

1. COMMISSIONER: This is an appeal against the refusal of Development Application DA/242/2017 by the Southern Joint Regional Planning Panel. The application seeks consent for the expansion of an existing solid waste non-putrescible landfill facility at Lot 472 and 502 DP751421 and Lot 2 DP 111917, known as 303 Burra Road, Gundagai.

2. The First Respondent has filed a submitting appearance. At the commencement of the hearing, in response to a subpoena to attend, Mr Allen Dwyer, General Manager of the Cootamundra-Gundagai Regional Council gave evidence. His oral evidence was that all concerns of the Council with the proposed development have been fully addressed by way of agreed conditions. The Council does not oppose the grant of consent to the development.

3. The Second Respondent, the Southern Regional Planning Panel (SRPP) argues in their Statement of Facts and Contentions (Exhibit 1) that the development should be refused for the following reasons:

1. the proposal to expand the landfill creates an unacceptable risk to the receiving ground water and surface water systems;

2. the site is fundamentally unsuitable for landfilling due to its environmental constraints;

3. the applicant has provided insufficient information to determine the impacts of the development in relation to:

1. to the surface water system;

2. particulate emissions; and

3. road traffic noise.

4. Following a consideration of the evidence presented and the submissions of the parties, I have determined that the application for the expansion of the existing landfill facility at 303 Burra Road warrants refusal. I find that: the development is unsuitable for subject site; is inconsistent with the relevant planning instruments; and is likely to have detrimental impacts on the environment and the locality. As a result, the appeal is refused.

The proposed development

5. The application seeks consent for the expansion of an existing land fill facility. The proposed expansion involves the following:

1. Increasing the rate of designated waste disposal from 40,000 to 60,000 tonnes per annum;

2. Establishing a new waste cell in three stages with a total design capacity of 486,000m³ or approximately 730,000 tonnes including partial ‘over tipping’ of existing Cells 1 & 2;

3. Amendment to the final waste and capping levels of Cells 1 & 2 of approximately 200,000 tonnes with a final design height of 306.5m AHD;

4. Diversion of an existing unnamed gully requiring the excavation of approximately 169,000m³ of rock and material;

5. Other ancillary works as detailed in the Environmental Impact Statement (EIS) and including the construction of an additional leachate storage dam, construction of access roads, and construction of access points for unloading waste into the cells.

6. The EIS notes that the expansion proposed will “extend the operational life of the facility for a further 12-15 years” (Exhibit A).

7. The proposed development involves the acceptance of waste from a single source, being the Tumut Pulp and Paper Mill.

8. The existing landfill was approved by Gundagai Shire Council on 4 June 2013 (DA/11/2013). The existing landfill operates under license from the Environmental Protection Agency (EPA), License No. 20297.

The site and its context

9. The subject site, 303 Burra Road, Gundagai, is accessed via an unnamed Crown Road that extends westward from its intersection with Burra Road. The proposed new waste cell will occupy part of Lot 2 DP111917 and Lots 472 and 502 in DP75142 as shown in the following extract of Exhibit A:

10. The site is located approximately three kilometres to the west of the township of Gundagai. The area between the town and the site is of a rural nature with open pastures and rolling hills. There are other uses such as rural industrial premises, hobby farms and mixed home-based industries. In the immediate vicinity of the site, 800m to the north, is the Council’s current landfill and recycling centre. There are no rural dwellings within 250m of the site (Exhibit A).

Public submissions

11. The application was publically notified for a period of 30 days during May and June 2017, in accordance with the requirements of cl 78 of the Environmental Planning and Assessment Regulation 2000 (the Regulation). By reference to the Council’s planning assessment report, Exhibit 2, a total of two hundred and forty one submissions were received. Of those submissions, 189 indicated support for the proposal, and 52 submissions raised concerns.

12. The matters raised in the submissions can be summarised as follows:

In support:

• The material currently accepted at the waste management facility, and proposed to be accepted under this application, is not toxic;

• The proposal will provide for the continued employment of the existing employees of the facility;

• The approval of the proposed development will have positive economic benefits by providing activity for local businesses;

• That the operation of the site is restricted to daylight hours which reduces any impact to adjoining properties from noise or traffic;

• That the proponent, and/or royalties from the use, provide positive support to local businesses, sporting clubs and organisations;

• That the site is a suitable location for the use as it was formally a quarry and is located in close proximity to Council’s waste management facility;

• That the development will improve the state of the currently degraded lands and gully;

• That refusal of the development has the potential to jeopardise the operation of the Visy paper mill.

Against

• Heavy vehicles using Burra Road will impact on residential amenity and safety. In particular: noise affecting residents on the haulage route; damage to local roads from heavy vehicles; potential hazards created by heavy vehicles utilising the narrow one lane bridge in Punch Street; safety issues for pedestrians and school buses; and the reliability of the warning lights;

• Concern that the traffic data is based on a misleading ‘count’ due to the location utilised for the counter;

• The development will generate noise and vibration impacts on the surrounding environment both at the construction and operational phases;

• Odour emanating from the facility;

• The development is having an impact on the cohesiveness of the Gundagai community given residents differing views of the development;

• Residents wish to have the existing facility ‘capped’ and the use to cease;

• Concerns about the integrity of the clay liner utilised in the lining of the waste cells and potential for ground water contamination both during construction and over time. In particular concerns about the impact of the proposed blasting on the existing clay liner in Cell 1 + 2;

• That the responsibility for the management of environmental risks and rehabilitation be clearly allocated now and into the future, as well as the responsibility to ensure the compliance of the facility;

• Potential health impacts from the construction and operation of the facility;

• Concern about the detrimental impacts on flora and fauna, water ways and the ecosystem;

• Potential impacts on Aboriginal sites;

• Concern about the practicality of reinstating the previous landforms on the site;

• Potential biosecurity risks of the landfill to the nearby Gundagai Bee Farm operation;

• Detrimental impacts on real estate prices for surrounding properties from the ongoing operation of the waste facility;

• Concern about the performance of the current operation, previous breaches of license conditions and an assertion that the site is being ‘mismanaged’;

• Argues that the proposed development is inconsistent with the intent of the planning controls, in particular the zoning of the land which is “primary production”;

• Concern about the management of leachate from the facility;

• The detrimental impact of the facility on tourism for the area;

• Potential for waste to come to the facility from other sources beyond the Visy Paper mill, concern about the classification of waste products (cover material, chemical composition and contaminated waste);

• That the environmental impact statement fails to adequately consider alternatives to the proposed development.

13. A number of oral submissions were made during the conduct of the hearing. These submissions reiterated the following points:

1. The positive benefits arising from the project for the proprietor of Gundagai Bees (the landowner), including improved road infrastructure, improved presentation of the site and the ability to increase employment as a result of royalties earned.

2. The effects of the limits on the capacity of the current site due to the annual tonnage limit imposed by the EPA license. The speaker noted that this limit resulted in the workers remaining under-employed for a period of four months of the year, following the achievement of the tonnage limit.

3. Concern for ongoing employment of current staff if the expansion is not approved and the low likelihood of finding new employment when the current capacity of the facility is reached (late 2018/19).

4. Concern that there is potential for leachate to interact with ground water over time and impact on bore water sources for surrounding residents as well as Jones Creek. One resident asserted from her research she remained concern that even with the application of the best technology, over time the liner will leak. In this particular site, if this occurs, it has the potential to pollute the ground water with heavy metals. The timeframe for such a risk will be long after the landfill operations are over.

5. That contamination has already been indicated in samples taken at the testing location (P1) indicating that the existing landfill is already causing pollution downstream.

6. Both resident speakers who lived in proximity to the site (Ms Field and Ms Hawthorne) indicated that they utilise bore water, but not as a primary water source. Both have alternative water available that they utilise as their primary potable water.

7. That the increased runoff and the change to the catchment (due to the proposed diversion) will reduce ground water recharge and natural percolation into the aquifer and increase erosion. Further that these changes will affect biodiversity and reduce water and soil quality.

8. The safety of the intersection of the driveway to 301 Burra Road and the access road due to truck movements and sight lines. The safety lights are unreliable and not always operational.

9. That the site is nominated in the local environmental plan as ‘sensitive land’ and should not be utilised for a landfill, especially when the EPA guidelines exclude such sites.

10. The EPA’s refusal to provide concurrence for the application, or a guarantee that the landfill will not leak, means the resident has no reassurance.

14. As part of the preparation of the EIS, the applicant also conducted a ‘community open day’. This engagement with the community included the fixed display of material detailing the application, attendance of the experts and a bus trip to the existing facility.

Lay evidence regarding bore water

15. There was a range of evidence given to the Court about the extent of usage of the bore water by residents in proximity to the proposed landfill extension, the palatability of the water and the extent of its connection to domestic water systems. They are summarised in brief below:

1. Ms Field lives at 301 Burra Road. Her evidence was that tank water was the primary source of water for her family with bore water utilised as a secondary source for sprinklers, animal troughs etc. Ms Field indicated rain water was a preferred source of water for the house hold.

2. Ms Hawthorne lives at 169 Punch Road. Her evidence was that whilst she does drink bore water in the yard, it is not her primary source of water in the house as she is connected to town water.

3. Ms Kennedy lives at 281 Burra Road. She indicated that at her property bore water is pumped daily into her rainwater tank to “top it up”. This tank water then supplies all the water requirements of the household. Dependant on rainfall the proportion of bore water to rain water varies.

4. Mr Paul Mann’s evidence related to the time he resided at 281 Burra Road. He caused the bore to be sunk on that property. Whilst he lived there he stated that the bore water was used for gardens, stock, and was also connected to the toilets. Rainwater was used for the household. It was his evidence that the bore water tasted “terrible” and while he was at the property neither himself nor the children drank the bore water. He stated he didn’t think Ms Kennedy drank the bore water either.

5. Mr Phillip Mann lives at Coppal, Burra Road. His evidence was that the bore water is utilised for the garden, livestock and to flush toilets. He relies on tank water for drinking water. It was his evidence that the bore water had a “bad taste”.

Planning Framework

16. Section 4.10 of the Environmental Planning and Assessment Act 1979 (the Act) defines designated development as:

development that is declared to be designated development by an environmental planning instrument or the regulations. (Emphasis added)

17. As the application proposes the landfilling of 60,000 tonnes/ pa, it is classified as designated development by virtue of cl 32(b)(iii) of the Regulation).

18. Section 4.12(8) of the Act requires:

(8) A development application for State significant development or designated development is to be accompanied by an environmental impact statement prepared by or on behalf of the applicant in the form prescribed by the regulations. (Emphasis added)

19. In September 2016, the NSW Department of Planning issued Secretary’s Environmental Assessment Requirements (SEARs) for the proposed development. The SEARs identify that:

“The Environmental Impact Statement (EIS) must meet the minimum form and

content requirements in clauses 6 and 7 of Schedule 2 of the Environmental

Planning and Assessment Regulation 2000.”

(Exhibit A)

20. A copy of the SEARs is incorporated in Exhibit A.

21. Clause 7 of Schedule 2 of the Regulation outlines the requirements for the contents of an EIS. The Applicant’s EIS contains an assessment of the application against the ESD principles at Section 6.10.10: ESD Principles, and the justification of the project at Section 2.0. The conformity of the EIS to the SEARs and cl 7 of the Regulation is not an issue raised by the SRPP.

22. The application is also classified as integrated development by s 4.46(1) of the Act as it requires licenses and approvals under other NSW Legislation. The proposed development will require licensing under the Protection of the Environment Operations Act 1979 and activity approval under the Water Management Act 2000. The status of those agency responses are as follows:

• NSW Environmental Planning and Assessment Authority (EPA): Letter of 3 November 2017, General Terms of Approval not provided.

• NSW Transport: Roads and Maritime Services: Letter of 27 July 2017: no objection, subject to conditions provided.

• NSW Office of Environment and Heritage: Letter of 17 July 2017: no objection, subject to conditions provided.

• NSW Department of Primary Industries: Letter of 1 November 2017: no objection, subject to conditions provided.

23. In hearing the appeal, the role of the Court (s 39 of the Land and Environment Court Act 1979 (LEC Act)) is to assess and determine the development application based on the evidence in the proceedings and any amended documentation. The Court may determine the appeal whether or not the consultation with the relevant Government Agencies has taken place and whether or not the concurrence or approval has been granted (s 39(6)(a) of the LEC Act).

24. Part 3 of State Environmental Planning Policy No 33 – Hazardous and Offensive Development (SEPP 33) applies to development for the purposes of a potentially hazardous industry or a potentially offensive industry. Clause 12 of Part 3 requires:

A person who proposes to make a development application to carry out development for the purposes of a potentially hazardous industry must prepare (or cause to be prepared) a preliminary hazard analysis in accordance with the current circulars or guidelines published by the Department of Planning and submit the analysis with the development application.

25. Clause 13 of Part 3, SEPP 33 provides that the following matters must be taken into consideration by the consent authority prior to determining the application:

In determining an application to carry out development to which this Part applies, the consent authority must consider (in addition to any other matters specified in the Act or in an environmental planning instrument applying to the development):

(a)  current circulars or guidelines published by the Department of Planning relating to hazardous or offensive development, and

(b)  whether any public authority should be consulted concerning any environmental and land use safety requirements with which the development should comply, and

(c)  in the case of development for the purpose of a potentially hazardous industry—a preliminary hazard analysis prepared by or on behalf of the applicant, and

(d)  any feasible alternatives to the carrying out of the development and the reasons for choosing the development the subject of the application (including any feasible alternatives for the location of the development and the reasons for choosing the location the subject of the application), and

(e)  any likely future use of the land surrounding the development.

26. The Applicant has provided the analysis required by cl 12 of SEPP 33 as a component of the EIS document. The satisfaction of the preliminary hazard analysis is not contended by the SRPP.

27. Because of the nature of activity and waste involved, a landfill site is identified as being potentially contaminated. State Environmental Planning Policy No 55: Remediation of Land (SEPP 55) applies to the development. Clause 7(1) of SEPP 55: requires the consent authority to consider whether the land is contaminated (at subcl (a)) and, if it is contaminated, the consent authority must be satisfied “that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out”.

28. The existing use is listed in Table 1 of: Managing Land Contamination Planning Guidelines SEPP 55–Remediation of Land, NSW EPA 1998. Pursuant to cl 7(2), the current application does not propose a change of use. I am satisfied that, whilst the land is contaminated, it is suitable in its contaminated state for which the development is proposed to be carried out. I note that the proposed draft conditions incorporate the requirement for closure and rehabilitation of the site once filled, if approved.

29. Division 23 of State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) provides that a waste disposal facility is permissible with consent in the prescribed zones (at cl 121(1)), including the RU1 Primary Production zone. As the subject site is zoned RU1 under the Gundagai Local Environmental Plan 2011 (LEP 2011) the development proposed is permissible with consent.

30. Section 3.28 of the Act, and cl 8(1) of SEPP Infrastructure, address inconsistency between instruments. Respectively, they state:

Section 3.28 of the Act

3.28 Inconsistency between instruments

(1) In the event of an inconsistency between environmental planning instruments and unless otherwise provided:

(a) there is a general presumption that a State environmental planning policy prevails over a local environmental plan or other instrument made before or after that State environmental planning policy, and

…

(c) the general presumptions of the law as to when an Act prevails over another Act apply to when one kind of environmental planning instrument prevails over another environmental planning instrument of the same kind.

…

(4) Nothing in this section prevents an environmental planning instrument from being expressly amended by a later environmental planning instrument, of the same or a different kind, to provide for the way in which an inconsistency between them is to be resolved.

Clause 8(1) of SEPP Infrastructure

Relationship to other environmental planning instruments

(1) Except as provided by subclause (2), if there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after commencement of this Policy, this Policy operates for the extend of the inconsistency.

None of the exclusions at cl 8(2) of SEPP Infrastructure apply to the development.

31. Clause 123 of SEPP Infrastructure provides that the following matters must be taken into consideration by the consent authority prior to determining the application:

123   Determination of development applications

(1)  In determining a development application for development for the purpose of the construction, operation or maintenance of a landfill for the disposal of waste, including putrescible waste, the consent authority must take the following matters into consideration:

(a)  whether there is a suitable level of recovery of waste, such as by using alternative waste treatment or the composting of food and garden waste, so that the amount of waste is minimised before it is placed in the landfill, and

(b)  whether the development:

(i)  adopts best practice landfill design and operation, and

(ii)  reduces the long term impacts of the disposal of waste, such as greenhouse gas emissions or the offsite impact of odours, by maximising landfill gas capture and energy recovery, and

(c)  if the development relates to a new or expanded landfill:

(i)  whether the land on which the development is located is degraded land such as a disused mine site, and

(ii)  whether the development is located so as to avoid land use conflicts, including whether it is consistent with any regional planning strategies or locational principles included in the publication EIS Guideline: Landfilling (Department of Planning, 1996), as in force from time to time, and

(d)  whether transport links to the landfill are optimised to reduce the environmental and social impacts associated with transporting waste to the landfill.

(2)  In this clause:

putrescible waste means general solid waste (putrescible) within the meaning of clause 49 of Schedule 1 to the Protection of the Environment Operations Act 1997.

32. The Applicant and the SRPP made opposing submissions in relation to the interaction of cl 123 of SEPP Infrastructure and the provisions of the applicable local environmental plan.

33. The subject site falls within the boundaries of the LEP 2011. Under the definitions of LEP 2011, the use of the site is defined as a ‘waste disposal facility’.

34. The aims of LEP 2011 (cl 1.2(2)) are:

(a) to retain the distinctive character of Gundagai town in its riparian setting,

(b) to protect Gundagai’s crop and pasture lands and vineyards from adverse environmental impacts,

(c) to protect environmentally sensitive land and important fauna and flora,

(d) to protect, conserve and enhance Gundagai’s rich indigenous and non-indigenous cultural heritage,

(e) to encourage economic growth, employment creation and business opportunities in the rural, village and urban areas of Gundagai,

(f) to maintain Sheridan Street as Gundagai town’s primary area for business, civic and cultural uses and visitor services,

(g) to encourage the renewal and consolidation of older residential areas close to the Gundagai town centre to provide appropriate housing that meets the needs of the community,

(h) to ensure that all development in Gundagai is required to comply with the principles of ecologically sustainable development.

35. The subject site is zoned RU1 Primary Production. The objectives of the zone are:

•  To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

•  To encourage diversity in primary industry enterprises and systems appropriate for the area.

•  To minimise the fragmentation and alienation of resource lands.

•  To minimise conflict between land uses within this zone and land uses within adjoining zones.

•  To encourage the efficient use and conservation of water resources.

•  To protect significant scenic landscapes.

•  To encourage development that does not adversely impact nearby agricultural activities.

•  To protect, enhance and conserve the natural environment, including native vegetation, wetlands and wildlife habitat.

•  To ensure development prevents or mitigates land degradation.

36. Part 6 of LEP 2011 contains additional local provisions relevant to the assessment of the proposal: cl 6.1 Biodiversity Protection; cl 6.2 Land Protection and cl 6.3 Water Protection. These clauses apply to land identified as “sensitive land” on the relevant Natural Resources Sensitivity Maps. The subject site is included in those maps.

37. Clause 6.1(3) “Biodiversity Protection” states:

(3) Before determining a development application for development on land to which this clause applies, the consent authority must consider any adverse impact of the proposed development on the following:

(a)  native ecological communities,

(b)  the habitat of any threatened species, populations or ecological community,

(c)  regionally significant species of fauna and flora or habitat,

(d)  habitat elements providing connectivity.

38. Clause 6.2(3) “Land Protection” states:

(3)  Before determining a development application for development on land to which this clause applies, the consent authority must consider any adverse impact of the proposed development in relation to:

(a)  the geotechnical stability of the site, and

(b)  the probability of increased erosion or other land degradation processes.

39. Clause 6.3(3) “Water Protection” states:

(3)  Before determining a development application for development on land to which this clause applies, the consent authority must consider any adverse impact from the proposed development on the following:

(a)  the water quality of receiving waters,

(b)  the natural flow regime,

(c)  the natural flow paths of waterways,

(d)  the stability of the bed, shore and banks of waterways,

(e)  the flows, capacity and quality of groundwater systems.

40. Each of the preceding cll 6.1, 6.2 and 6.3 have the following precondition at subcl (4):

(4)  Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that:

(a)  the development is designed, sited and will be managed to avoid any adverse environmental impact, or

(b)  if that impact cannot be avoided—the development is designed, sited and will be managed to minimise that impact, or

(c)  if that impact cannot be minimised—the development will be managed to mitigate that impact.

41. The instrument requires the consent authority to form a positive opinion of satisfaction on these matters before the exercise of power to grant consent (Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 at [13]).

42. Relevant to the assessment of the application are the following guidelines:

1. Landfilling: EIS Guideline by Department of Urban Affairs and Planning, 1996 (‘the EIS Guidelines’), and in particular Table 1, extracted below:

2. Environmental Guidelines Solid Waste Landfills by NSW Environment Protection Authority, Second Edition, 2016 (‘the Landfill guidelines’)

Is there an inconsistency between SEPP Infrastructure and LEP 2011?

43. Preston CJ in Hub Action Group Incorporated v Minister for Planning and Orange City Council [2008] NSWLEC 116 identifies two forms of preconditions: firstly, procedural preconditions; and secondly, preconditions that that require the Court to form a position opinion of satisfaction:

38 The first precondition prescribes a process that must be undertaken: the making of an assessment of the kind specified. The second precondition requires the consent authority to form the requisite opinion of satisfaction. Both preconditions must be satisfied before the weighing of the merit considerations under s 79C(1) of the Act. Making the requisite assessment and forming the requisite opinion of satisfaction enlivens the power to grant consent to the development: (Citations omitted)

44. As noted at par [40] cll 6.1(4), 6.2(4) and 6.3(4) of LEP 2011 require the Court to form an opinion of satisfaction that:

(a) the development is designed, sited and will be managed to avoid any adverse environmental impact, or

(b) if that impact cannot be avoided—the development is designed, sited and will be managed to minimise that impact, or

(c) if that impact cannot be minimised—the development will be managed to mitigate that impact.

45. The relevant “adverse environmental impact” for each subcl (4) is particularised at cll. 6.1(3), 6.2(3) and 6.3(3) of LEP 2011. The Applicant’s satisfaction of these preconditions is contested by the SRPP.

46. It is accepted by the parties that the subject site is mapped as within the relevant Natural Resources Sensitivity Maps referred to in LEP 2011 and that these clauses apply to the subject development.

47. Further preconditions apply to the process undertaken and the requisite assessment of the application. They are:

1. Clause 13 of Part 3, SEPP 33 matters for consideration (as detailed at [25]);

2. Clause 123 of SEPP Infrastructure matters for consideration (as detailed at [31]);

3. Consideration of the zone objectives (cl 2.3(2) of LEP 2011)

4. The matters for consideration in cll 6.1(3), 6.2(3), and 6.3(3) of LEP 2011.

48. The Applicant argues that cll 6.1, 6.2, and 6.3 of LEP 2011 are inconsistent with the provisions of cl 8 of SEPP Infrastructure and do not operate as a precondition to consent. They submit:

“Whilst the Gundagai LEP is a relevant consideration to be taken into account, in so far as cl 6.2(4) and 6.3(4) would impose a prohibition on the grant of consent unless the consent authority is satisfied as to the matters stipulated in that subclause, the provision is inconsistent with the Infrastructure SEPP. Clause 121 of the Infrastructure SEPP will prevail and cl 6.2(4) and cl 6.3(4) do not operate to mandate that development consent should be refused.”

(Applicant’s written submissions, 22 August 2018, at 159)

49. The Applicant argues that their submission is supported by the decision of the Court of Appeal in Hastings Point Progress AssociationIncv Tweed Shire Council(2009) 168 LGERA 99 (‘Hastings’).

50. Relevantly, the Hastings case concerned a development application for a seniors living development permissible under State Environment Planning Policy (Seniors Living)2004 (SEPP(SL)). In a regime similar to the current case, cl 5(3) of SEPP(SL) provided that that policy prevails to the extent of any inconsistency with any other environmental planning instrument, and cl 17 provides that Ch 3 of the SEPP(SL) allows development for seniors living “despite the provisions of any other environmental planning instrument if the development is carried out in accordance with this Policy…”. Clause 8(1) of Tweed Local Environmental Plan 2000 (TLEP) provided that consent could be granted to development only if the consent authority was satisfied, among other things, that the development “is consistent with the primary objective of the zone within which it is located”, and “would not have an unacceptable cumulative impact on the community, locality or catchment that will be affected…”.

51. The decision of the Court of Appeal in Hastings was that where cl 8(1) mandated refusal unless the conditions were satisfied, and cl 17 permitted the development, that provision could not operate concurrently with cl 17 and there was an inconsistency between them. Young JA held that the primary Judge had been correct to hold that the failure to be satisfied under cl 8(1) could not on its own give rise to a refusal of a development application that was for a development within SEPP(SL).

52. It is on similar reasoning that the Applicant argues that failure to satisfy cll 6.2(4) and 6.3(4) in LEP 2011 does not preclude the Court from undertaking a merit assessment and granting consent to the development.

53. Mr Howard and Ms Novak address the preconditions in cll. 6.2(4) and 6.3(4), and their interaction with SEPP Infrastructure in their written submissions.

54. Firstly, they argue that the interpretation of cll 6.2(4) and 6.3(4) advanced by the SRPP is incorrect and that:

“On its proper construction, clause 6.3(4) requires the consent authority (Court), before granting development consent to land identified as ‘sensitive land’ on the Natural Resources Sensitivity Map to be satisfied that the development is designed, sited and will be managed to achieve the objectives listed in sub-paragraphs (a), (b) or (c). Those sub-paragraphs set out, in descending order, the objectives the Court must be satisfied the development is designed and sited and will be managed to achieve.”

(Applicant’s written submissions, 22 August 2016, at par 151)

55. Importantly, Mr Howard and Ms Novak argue that if achievement of (a), avoidance of adverse environmental impact, is not possible, objective (b) articulates “an alternative (next best) objective” of designing, siting and managing to minimise the impact. If that isn’t possible, subcl (c) focusses on managing the development to mitigate the impact.

56. Further, Mr Howard and Ms Novak argue that, in the event that the Court is not satisfied by the matters in cll 6.2(4) and 6.3(4), that does not preclude the grant of consent. Their reasoning is as follows:

1. the Infrastructure SEPP (cl 121) provides that the proposal is permissible with consent and does not require the Court to be satisfied as to the matters listed under cll 6.2(4) and 6.3(4) of LEP 2011;

2. to the extent that cll 6.2(4) and 6.3(4) would impose a prohibition on the grant of consent (unless the consent authority was satisfied as to the matters listed) the provision is inconsistent with cl 121 of SEPP Infrastructure;

3. Relying on Hastings Point Progress Association v Tweed Shire Council & Anor (2009) 168 LGERA 99 they submit that “cl 121 of SEPP Infrastructure will prevail and cl 6.2(4) and 6.3(4) do not operate to mandate that development consent be refused”.

(Applicant’s written submissions, 22 August 2016, at pars 158-161)

57. In the alternative, the SRPP argues that cll 6.2(4) and 6.3(4):

“do not reverse the beneficial effect of the Infrastructure SEPP which makes the proposal ‘permissible’, because the proposal was already permissible under the Gundagai Local Environmental Plan 2011 and those clauses are merely merit assessment considerations, satisfaction of which gives the consent authority the power to grant consent (if that be the consent authority’s decision with respect of the application)” (Respondents written submissions at 51).

58. The SRPP submits that the application warrants refusal on the grounds that the preconditions cll 6.2(4) and 6.3(4) are not satisfied. Mr Leggat and Mr Nash note that in particular they rely on cl 6.3(4), refer to [39].

59. Mr Leggat and Mr Nash argue that cl 123 of SEPP Infrastructure acts to provide additional matters of consideration for the consent authority in determining the application, and is not, in their view, inconsistent with cll 6.2(4) and 6.3(4). They note that in their submission these clauses “do not reverse the beneficial effect of the Infrastructure SEPP which makes the proposal ‘permissible’, because the proposal was already permissible under the Gundagai Local Environmental Plan 2011 and those clauses are merely merit considerations, satisfaction of which gives the consent authority power to grant consent...” (Second respondent’s written submissions, 17 August 2018 at par 51).

60. Mr Leggat and Mr Nash argue that the construction of these clauses should be taken as follows:

“… in order to satisfy the Court as to a proposal’s satisfaction of cll 6.2(4) and/or 6.3(4), one cannot simply ‘chose’ whether to ‘minimise’ or ‘mitigate’ and impact if any adverse environmental impact cannot be avoided. It is necessary that subclause (a) be satisfied, in the first instance, by evidence, and only once that has been done, may one proceed to consider subclause (b). Then, only if subclause (b) is satisfied, be evidence, may one proceed to consider subclause (c).”

(Second respondent’s written submissions, 17 August 2018 at par 45)

61. Relevantly, they argue that “…the Applicant has not brought forward any evidence to satisfy the first precondition that the proposal is designed, sited and will be managed to avoid any adverse environmental impact, or that the proposal cannot avoid that impact. Accordingly, the Applicant does not get through the ‘first gate’ of cll 6.4(4) or 6.3 (4) – that is options to minimise or mitigate impacts are irrelevant unless and until the first gate can be passed through” (Second respondent’s written submissions, 17 August 2018 at par 46). On this basis, it is Mr Leggat and Mr Nash’s submission that the leachate barrier design and the ongoing management of the facility in accordance with the Landfill Guideline and the EPA license therefore do not arise for consideration.

61. On this basis, Mr Leggat and Mr Nash say that the precondition is not satisfied and the Court has no power to grant consent to the development.

Consideration

63. The hierarchy of planning instruments results in the presumption of SEPP Infrastructure prevailing to the extent of any inconsistency with any other environmental planning instrument (cl 8(1) of the Act). LEP 2011 is such an environmental planning instrument.

64. Clause 121(1) of SEPP Infrastructure provides that development for the purposes of waste disposal facilities “may be carried out by any person with consent on any land in a prescribed zone”. While cl 121(1) of SEPP Infrastructure is worded differently to cl 17 of the SEPP(SL), as considered in Hastings, it is to the same effect, in making development permissible which would otherwise be prohibited by a local environmental plan. My reading of the relevant case law is that such a prohibition may arise either by operation a clause, such as the zoning of the land at cl 2.3(1) of LEP 2011, through a clause that acts as a precondition to consent (such as the failure to satisfy a precondition such as cll 6.2 and 6.3 of LEP 2011).

65. Inconsistency arises when two clauses are incapable of concurrent operation. This is explained in Hastings at [1] as follows:

Where cl 8(1) of the TLEP mandates that the Council refuse consent to development unless three conditions to which it refers are satisfied, and cl 17 of SEPP-SL permits the development to which it refers despite the provisions of any other instrument if the development is carried out in accordance with SEPP-SL, the two clauses are incapable of concurrent operation, and inconsistency arises between them: Coffs Harbour Environment Centre Inc v Minister for Planning (1994) 84 LGERA 324; Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; 155 LGERA 52.

66. Applying Hastings, I am satisfied that there is relevantly an inconsistency for the purposes of s 3.28 of the Act between LEP 2011 and the SEPP Infrastructure. In that circumstance, the SEPP Infrastructure would prevail, and the proposed development would be permissible, despite a finding that the precondition in either cll 6.1, 6.2, and 6.3 of LEP 2011 is not met.

67. While there is power to grant consent under cl 212(1) of SEPP Infrastructure, compliance with its provisions does not mandate that the proposed development be granted consent: McColl JA in Hastingsat [6] and the matters in cll 6.1, 6.2, and 6.3 of LEP 2011 are relevant matters for consideration under s. 4.15 of the Act.

Is the Precautionary Principal triggered?

68. The experts disagree as to the application of the precautionary principle to the assessment of the development.

69. Mr Perica argues it is reasonable to apply the precautionary principle on the following reasoning:

(a) LEP mapping – separately identifying the site, in whole or part, within Natural Resources Biodiversity, Land and Water Sensitivity within the LEP

(b) State Guidelines – specifically for the use, stating that landfill should be avoided and alternative sites found where (they) are very close to a water body (an where overlaying an aquifer with drinking water quality);

(c) The nature of the use – being landfill in an environmentally sensitive area and within 40m of a water body;

(d) The nature of the proposal – filing a gully and water body with waste and diverting that water body, with the associated level of intrusion with natural forms and processes;

(e) Scientific uncertainty – about ground and surface water impacts and that such uncertainty exists despite all the efforts and analysis done over a number of years;

(f) Potential impacts – impacts on ground water are long lasting and difficult to reverse, and both ground and surface water are important resources for society and in rural agricultural areas. These factors elevate potential impacts to be potentially significant;

(g) Lack of NSW EPA approval – this is the key NSW agency in the regulation and establishment of such facilities and regulator of environmental impacts from operations. It is unusual, in my experience, for an approval to be issued against the express view of an agency responsible for General Terms of Approval for Integrated Development. The EPA is not just and approval body but is also responsible for the regulation and ongoing licensing (which can change over time) and this may create potential operational issues where ongoing licensing is the responsibility of an agency opposed to its approval.

(Exhibit 4)

70. In the alternative, Mr Salvestro argues that the precautionary principle has not been triggered in relation to the subject proposal as:

a. there is minimal threat of serious or irreversible environmental damage; and

b. from the scientific data presented and discussed to date, there is a considerable level of scientific certainty in the expert findings that the environment will be protected.

(Exhibit 4)

71. Further, Mr Salvestro argues that the precautionary principle is one of “many elements that underpin the concept of ecologically sustainable development (ESD)” and that the application of those principles should be guided to avoid, where practical, serious or irreversible damage to the environment and an assessment of the risk – weighted consequences of the various options. It is his evidence that the Applicant, in preparing the EIS, has applied this approach.

72. Mr Howard and Ms Novak argue that the SRPP’s reliance on the application of the precautionary principal should be rejected by the Court as “[t]here is no proper evidentiary foundation to establish either a threat of serious environmental damage in the requisite sense or of irreversible damage in the circumstances of this case, whether one focusses on the matters identified by Preston CJ in Telstra at [131] or otherwise” (Applicant’s written submissions, 22 August 2016, at par 111).

73. The Applicant submits that, consistent with Telstra Corporation Ltd v Hornsby Shire Council (2006) NSWLR 256 (‘Telstra’) at [128], in order to establish that the precautionary principle is engaged: “the respondent must first persuade the Court that there is a threat of serious or irreversible harm and it must then persuade the Court that there is a requisite degree of uncertainty about the nature and scope of the threat of environmental damage”. Mr Howard and Ms Novak submit, on the evidence of the hydrogeologists’, that these thresholds are not met and the precautionary principal is not engaged. The applicant’s reasoning is as follows:

1. the threat needs to be more that an idea or a possibility;

2. the environmental damage that the SRPP says is “serious or irreversible” is not clearly defined;

3. The SRPP’s submission does not establish the potential for leachate (if it was to migrate to the groundwater) to cause some serious or irreversible harm, other than an elevation of dissolved solids and alkalinity. There is no evidence that the elevation of dissolved solids and alkalinity in the ground water “constitutes serious or irreversible harm”;

4. Secondly the SRPP fails to establish that if the alleged environmental damage is the consequential impact, or impacts on human receptors of leachate contamination, that this constitutes “constitutes serious or irreversible harm” or that the possibility of this occurring is a “real threat in the sense of their being grave or imminent peril” (Applicants submissions in Reply, at par 35). Further the applicant argues:

“Based on what is known about this leachate, the evidence precludes any finding of there being any threat of impact on human health. At most, if all of the improbable contingencies occurred, the worst case scenario would be that there would (be) a highly localised effect in which a small number of nearby bore users, who don’t use the bore water as their primary source of drinking water, might temporarily not be able to use it as a secondary source of drinking water because of an increase in salts and alkalinity and, according to Mr Jewel, perhaps this might diminish the value of their property. In the spectrum of the types of potential environmental damage with which modern decision makers are familiar, it is quite unrealistic to portray this as a threat of serious or irreversible environmental damage, notwithstanding it would be an undesirable result.”

(Applicants submissions in Reply, at par 36).

74. Given their submission that the SRPP’s reliance on the precautionary principal should be rejected by the Court, Mr Howard and Ms Novak conclude that, utilising a conventional merit assessment under s 4.15 of the Act the Court should, “properly conclude on the evidence that there are no likely impacts on ground water and thus it would find for the applicant on the sole issue pressed by the Respondent as warranting the refusal of the application” (Applicant’s written submissions, 22 August 2016, at par108).

75. Mr Leggat and Mr Nash argue that the application engages the precautionary principle (as an element of ESD). They note that the leading decision on the precautionary principle is Telstra. They submit that the application meets the two preconditions required to ‘trigger’ the application of the precautionary principle, namely: a threat of serious or irreversible environmental damage; and that there be a lack of full scientific certainty (Second respondent’s written submissions, 17 August 2018 at par 54). Their reasoning is as follows:

76. First Pre-condition, referencing the relevant factors outlined in Telstra:

• That the hydrogeologists’ agree that the threat was ‘local’ and described as: the leachate contamination of groundwater beneath the proposed landfill which could migrate down gradient of the site and which could impact human receptors (both users and uses) and their infrastructure (i.e. bores) (Second respondent’s written submissions, 17 August 2018 at par 57)

• Relying on Mr Jewell’s evidence they conclude that that the potential/ possible impact is ‘high’ on human systems if contaminated ground water is pumped from a bore. Mr Jewell nominates potential impacts on human health, livestock and potential economic impacts (property devaluation and impacts on livestock accreditation). They discount Mr Lane’s evidence that the threat is not of “a magnitude so as to cause high impact because there was no ready connection between the ground water and the receiving environment” on the grounds Mr Lane overlooks the vulnerability aquifer and that the impact needs only to be ‘possible’.

• There is lay evidence that residents utilise bore water for domestic household use.

• They note that the evidence of Mr Jewell that there is a lack of certainty about what contaminated material may exist in the waste products to be deposited at the landfill, which increases the potential impact of leachate escape into the ground water system. They also note that Mr Lane did not contradict this evidence.

• Mr Leggat and Mr Nash note that it is Mr Jewell's evidence that groundwater contamination tends to be long lasting and is not readily amenable to remediation. Mr Jewell argues any impact could have a duration of 'years to decades', and that there is uncertainty of the potential receptors given the aquifer is part of a fractured rock system. They note the evidence of Mr Lane as saying that the level of impact was 'not particularly high, given the information we've got'; and note that in their submission this validates the lack of information referred to by Mr Jewel.

• It is Mr Jewell’s evidence that the impacts are relatively simple, the complexity arises from a lack of understanding of the behaviour of leachate in the specific environment of the subject site. Mr Leggat and Mr Nash submit on the evidence it is not possible to understand the geometry of the fractured flow system and that there is no information between P1 and the downgradient bores being a potential point of impact. They note that Mr Lane also acknowledged that one cannot say which bores will be within the flow path of any contaminated groundwater from the site, and that contamination can escape from the site. They note Mr Lane then agreed in cross examination, however, that insofar as concerns potential individual receptors, “a detailed risk assessment has not been done” and when asked if the owner of a downstream bore should have expected that such an assessment should have been done, he answered "yes".”

• That Mr Jewell concludes that, despite the likelihood of impact being low, the consequences are high, and this produces a 'moderate risk'. Mr Leggat and Mr Nash submit on Mr Jewell's analysis, the likely impacts of proposed Cell 3 do not, and even with engineered solutions cannot, reduce to negligible levels.

• That by reference to Mr Jewell's evidence after impact to groundwater has occurred, it is difficult to manage and that replacement of water supplies by tanker or town water is possible, the acceptability of these management options will vary according to the individual preferences, and may be significant.

• Mr Leggat and Mr Nash submit that the evidence of Mr Jewel in relation to the source of the elevated readings in the monitoring bore P1 should be preferred. Further they argue that his conclusion that the elevated levels come from leachate loss from Cell 1 & 2 lends weight to the public concern. They note in particular the summary of his evidence:

His (Mr Jewell’s) evidence was 'any engineered system can fail'.

He also said that over time, leachate contaminated water could transfer through the weathered rock system, such that it is not a question of whether it will enter the groundwater system, but rather it is a question of 'when' it will so enter, in this respect, he agreed it was not possible to be precise about timing, but used the phrase 'several years'.

(Second respondent’s written submissions, 17 August 2018 at par 57)

• Finally in conclusion to the first pre-condition Mr Leggat and Mr Nash rely on the evidence of Mr Jewel that: “if impacts did occur, apart from cutting it off at the source, in the circumstances of this site, no human intervention could effectively be applied to reverse the impacts once they have occurred” (Second respondent’s written submissions, 17 August 2018 at par 57). They note that Mr Jewel’s evidence is that such remedial technologies are difficult to apply in a fractured rock system.

77. Second Pre-condition, referencing the relevant factors outlined in Telstra:

• Mr Leggat and Mr Nash argue that the EIS does not contain sufficient evidence in the following areas:

◦ the use of the use of groundwater by residents and bores in the locality which could be impacted;

◦ a proper analysis of the rock system supporting the aquifer, and therefore evidence and knowledge about the behaviour of that system and consequently the likely spread and distribution of potential impact;

◦ the degree of knowledge about the potential harm that may be caused by the proposed new Cell 3 to potential future users and uses of the aquifer

• That on the basis of the evidence of Mr Jewel there is uncertainty about the composition of the waste, the chemical characteristics of the waste and finally there is uncertainty as to whether Cell 3 will leak or not, and on his analysis although it is a low likelihood, it is not certain that it will not occur.

• They conclude that the provision of such information has the potential to reduce uncertainty, and in the circumstances of this case, the information is lacking such that the second precondition to triggering the precautionary principle has been satisfied.

• (Second respondent’s written submissions, 17 August 2018 at par 58).

Consideration

78. In Telstra, Preston CJ states that the application of the precautionary principle is triggered by the satisfaction of two conditions precedent. They are:

1. a threat of serious or irreversible environmental damage; and

2. scientific uncertainty as to the nature and scope of the threat of environmental damage.

79. Assessing whether there is a threat of serious or irreversible environmental damage, and the degree of scientific uncertainty, involves a process of analysis of many factors: Telstra at [131], [141]. The uncertainty is as to the nature and scope of the threat of environmental damage: Telstra at [140].

80. When both of these conditions have been satisfied, the concomitant need to take precautionary measures arises, but those measures must be proportionate to the level of the threat. The more significant and the more uncertain the threat, the greater the degree of precaution required (Telstra at [161].)

‘a threat of serious or irreversible environmental damage’

81. As to the first condition precedent, it is not necessary that serious or irreversible environmental damage has actually have occurred – it is the threat of such damage that is required. The environmental damage threatened must attain the threshold of being serious or irreversible, and be sustained by scientific evidence (Telstra at [129]).

82. It is clear from Telstra that if there is no threat of serious or irreversible environmental damage, there is no basis upon which the precautionary principle can operate (Telstra at [138-139]).

83. The basis of concluding there is a threat of serious and irreversible harm must be more than a “simple hypothesis, speculation or intuition”. It should be postulated to an extent that it is “reasonable to envisage a scenario, even if it does not enjoy unanimous scientific support”, Telstra at [148].

84. Applying the principles in Telstra, the first step is to assess the seriousness and the irreversibility of the environmental damage. The Respondent relies on Mr Jewel’s evidence to satisfy this step.

85. In the decision of Mansfield v Minister for Planning and Hanson Construction Materials Pty Ltd [2012] NSWLEC 1063, which related to an application for a new quarry where naturally occurring asbestos was located, the Court held that the first precondition was met on the basis that: it was common ground that naturally occurring asbestos presents a risk to human health where it is disturbed or exposed to the atmosphere (at [5]); and the evidence of a qualified expert that “that once inhaled, tremolite cannot be removed; it causes changes in the lungs which manifest as mesothelioma, for which there is no known cure; these conditions appear 10-20 years after first exposure; and the average time from first onset of symptoms and diagnosis to death is approximately nine months” (at [77]).

86. I am satisfied that the evidence of the hydrogeologists’ establish, with differing conclusions of likelihood, that there is a risk arising from leachate leakage from the proposed cell and migration into the aquifer.

87. I am not satisfied however; there is sufficient evidence before the Court to establish, to the level intended by the condition precedent in Telstra, of environmental harm to either uses or users of water from the aquifer if it is so impacted. I am not satisfied that the Respondent has demonstrated the environmental damage that would arise. I note the evidence of Mr Jewel that: contaminated bore water may impact stock quality and livestock accreditation; ongoing bore licenses for stock and domestic use; devaluation of property and economic harm. However, this evidence was not supported by any further documentation.

88. Neither of the hydrogeology experts asserted that the increased concentration of salinity and a change in the alkalinity in bore water, that would arise from leachate ingress, are harmful to human health (Page 75 and 79 of the Court transcript, 16 August 2018). I acknowledge the concern of Mr Jewel that unintended contaminants in the landfill material may contain substances that cause environmental harm, but no scientific evidence is before the Court that sustains that proposition.

89. As a result, in the current proceedings, I find that the evidentiary basis proposed to establish serious or irreversible environmental harm arising from leachate discharge into the ground water to uses or users downstream (in the manner defined by Telstra) is insufficient to satisfy the first condition precedent.

The Merit Issues

90. On the basis of the evidence heard and submission made by the parties, the primary merit questions to be determined by the Court are:

1. Whether the development poses an unacceptable risk to receiving ground water systems;

2. The application of the EIS Landfill guideline insofar as it concerns the suitability of the location of proposed Cell 3, and the weight afforded to the guideline in the assessment of the application, and

3. Whether, on balance, any impacts arising from the proposed use are offset by the benefits arising from the development.

The expert evidence 

91. The registrar made the directions on 31 July 2018 for town planning and hydrology/geology experts to confer and produce expert reports.

92. The applicant relies on the evidence of Mr Garry Salvestro (town planning) and Mr Anthony Lane (hydrology/geology).

93. The SRPP (second Respondent) relies on the evidence of Mr Jason Perica (town planning) and Mr Chris Jewell (hydrology/geology).

Planning Evidence

94. The planning experts agree that: “the site is identified on the NSW Land and Water Conservation Groundwater Vulnerability Map (2001) within an area categorised as moderately high in respect of groundwater impact from pollution” (Exhibit 4).

95. It is Mr Perica’s evidence that cl 123(1)(c) of SEPP Infrastructure highlights the importance of site evaluation and selection in controlling any potential impacts arising from the landfill. He notes subcl (1)(c), at (ii), requires the consent authority to take into consideration whether the development is consistent with the locational principles, identified in Table 1 of the EIS Guidelines (refer to [42]).

96. It is Mr Perica’s evidence that the proposed extension of the landfill through the construction of Cell 3 is inconsistent with the EIS Guidelines given its location within 40m of the diversion to Spillbry Creek, and its location over the aquifer.

97. Mr Perica argues that the importance of location and site selection, as a means of avoiding impact arising from a waste management facility, is also emphasised in the Landfill Guidelines, which state:

“Siting Restrictions

Location is an important factor in determining the environmental risk posed by a landfill. Judicious location of a landfill is the single most effective environmental management tool.

Some of the minimum standards in these guidelines will be easier to achieve, and some design elements may even be omitted, by selecting a site where natural barriers (e.g. hydrogeological barriers) protect environmental quality and where the separation distances to sensitive receptors ensure that there will not be adverse impacts on existing and future development. The risk of leachate contamination increases where the site is in poor hydrogeological conditions, near sensitive water bodies such as wetlands, or near water sources used for drinking, irrigation, industrial use or stock watering.

These guidelines do not contain express buffer distances or locational requirements. However, there are a number of recognised environmentally sensitive and inappropriate areas for landfilling. The EPA supports the list of such locations set out in the NSW Department of Planning and Environment’s EIS Practice Guideline: Landfilling, Table 1 (NSW Department of Urban Affairs and Planning, 1996).

In summary, the list of inappropriate areas for landfilling includes sites located as follows:

• within 250 metres (or other protection zone) of an area of significant environmental or conservation value identified under relevant legislation or environmental planning instruments, including national parks, historic and heritage areas, conservation areas, wilderness areas, wetlands, littoral rainforests, critical habitats, scenic areas, scientific areas and cultural areas

• within specially reserved drinking water catchments, such as special areas identified by the Sydney Catchment Authority, Sydney Water and local water supply authorities;

• within 250 metres of a residential zone or dwelling, school or hospital not associated with the facility;

• in or within 40 metres of a permanent or intermittent water body or in an area overlying an aquifer that contains drinking water quality groundwater that is vulnerable to pollution;

• within a karst region or with substrata that are prone to land slip or subsidence

• within a floodway that may be subject to washout during a major flood event (a 1-in-100- year event).”

98. Mr Perica concludes that the on the basis that: the unnamed creek is an intermittent water body; the proposed location of Cell 3 is within 40m of the diversion to Spillbry Creek; and is located over the aquifer, makes the subject development inconsistent with both the EIS Guidelines and the Landfill Guidelines. Mr Perica is not persuaded that such an inconsistency is adequately justified by the Applicant and notes that both of the guidelines are matters for consideration under cl 123 of SEPP Infrastructure. Mr Perica argues the development warrants refusal.

99. Further, in reference to cl 6.2(4) of LEP 2011, Mr Perica argues that:

“In terms of subclause (4), the proposal seeks to manage and mitigate impacts. However, given the nature of the use and other provisions specifically relating to waste facilities (within the 1996 and 2016 Guidelines and the provisions of the Infrastructure SEPP), it is reasonable in these circumstances to seek avoidance of impact, rather than mitigation.”

(Exhibit 4)

100. In the alternative, Mr Salvestro argues that the EIS Guidelines “list a broad range of site selection criteria that are recommended to be taken into consideration when conducting an initial site investigation for a landfill proposal” (Exhibit 4) and that the expert reports accompanying the EIS provide adequate justification to conclude:

1. The gully is appropriately defined as an ‘ephemeral drainage’ and not a higher order ‘intermittent water body’. Therefore, by reference to Table 1 in the EIS Guideline, Mr Salvestro argues that the site is not within 40m of a “permanent or intermittent water body”; and

2. That the subject land is not prescribed by planning instruments as being environmentally sensitive, or within 250m of such land.

101. In response to Mr Perica’s evidence, Mr Salvestro provides the following assessment against the matters for consideration at cl 123 in SEPP Infrastructure:

“a. …. waste is minimised before it is placed in landfill (123(1)(a))

The waste material description is outlined in the EIS. It is the end product of a waste recycling process undertaken by Visy. My understanding is that the resource recovery and recycling programme being undertaken by Visy is current best practice with a continued obligation to improve and refine the process. The waste is a minor component of the recycled waste and can only be taken to landfill, at this stage.

b. ... adopts best practice landfill design and operation (123(1)(b)(i))

EIS documentation indicates that the proposal has been designed, and is intended to be operated, in accordance with the 2016 EPA Environmental Guidelines Solid Waste Landfills. I understand this is current best practice.

c. …reduced the long term impacts of the disposal of waste… (123(1)(b)(ii))

The EIS expert reports on air quality and greenhouse gas emissions have taken into consideration any opportunities to reduce the long term impacts of the new waste cell, based on its relative size and potential generation of recoverable energy.

d. … whether the land … is degraded land such as a disused mine site… (123(1)(c)(i))

The site is located on degraded land including land formerly used for quarrying activities. Aerial photos indicate that earlier quarrying activities encroach upon part of the proposed Cell 3 area (see Annexure H – 1971 – 1986 – 1998 – 2006 aerial photo extracts). The site has a long history of land clearing and degradation as a result of previous agricultural and quarrying activities.

e. … whether the development is located so as to avoid land use conflicts, including whether it is consistent with any regional planning strategies or locational principles including in the publication EIS Guideline: Landfilling… (123(1)(c)(ii))

The proposal is an expansion of an existing landfill operation and is located adjoining a former Council landfill and night soil facility, other rural activities and industries and a sufficient distance from sensitive receptors to avoid landuse conflicts.

The proposal is consistent with the regional planning strategies including the Riverina – Murray Regional Plan, and State and Regional waste strategies, as outlined in the EIS document.”

(Exhibit 4)

102. Mr Salvestro concludes that, based on his understanding of the site selection criteria in the EIS Guidelines, and the information about the proposed development contained in the EIS, the development is consistent with the EIS Guidelines.

103. Mr Salvestro’s notes that the EIS considered and documented alternatives, including the development of a new site and the do nothing approach. His evidence is that “development of an expanded landfill facility on the subject site presents the most sustainable option under the current circumstances” (Exhibit 4).

The Hydrogeology Evidence

104. The hydrogeologists’ agree on the following facts in relation the existing development of Cells 1 & 2 on the subject site:

• The landfill was designed and constructed in 2013 in compliance with the NSW landfill guidelines at the time, namely “Environmental Guidelines: Solid Waste Landfills (NSW EPA, 1996)”.

• The landfill design included a 900mm compacted clay liner, a leachate drainage layer with pipes draining leachate under gravity to an external leachate transfer dam.

• The management of leachate at Cells 1 & 2 has the effect of preventing accumulation of a “head” of leachate on the clay liner.

• Cells 1 & 2 landfill was constructed in accordance with a construction quality assurance plan.

(Exhibit 5)

Hydrogeological Characteristics of the site at proposed Cell 3

105. In relation to hydrogeological characteristics of the site, in the location of the proposed development of Cell 3, they agree:

• “the site is underlain by Silurian-age Frampton Volcanics (having the symbol “Sf” on the geological map), which are composed of rhyolitic and dacitic lavas and volcaniclastic rocks.” (Exhibit 5)

• These rocks form “a fractured rock aquifer having permeable zones where fracturing occurs and often associated with the axes of folds in the rock units. The unweathered rock mass has negligible permeability” (Exhibit 5).

• “These rocks are weathered in the near surface zone, forming a clay-rich mantle which does not retain open fractures but may develop sufficient intergranular permeability to permit slow downward percolation of recharge derived from rainfall or streambed infiltration to the underlying fractured zones.”

• “The bore logs of the site investigation bores show the underlying rocks as dacite. The weathered mantle is described as extremely (clay) to highly weathered (weak rock often with clay in-fill in remnant fractures) in the upper few metres and overlain by colluvial clayey sands and gravels.”

• In the vicinity of the site, the aquifer is a confined system, not a water table or unconfined aquifer. Groundwater was encountered during drilling at a depth of approximately 12 to 19 m below ground level.

• That the proposed location of Cell 3 overlays an aquifer (Exhibit 5).

• The aquifer is used in the district for stock and domestic purposes. The hardness of the water may cause problems for some domestic uses.

The extent of previous quarrying activities

106. The hydrogeology experts note that by reference to historical aerial photography that “the former rock quarry operated at the site for about 10 years in the 1970s although aerial photographs attached show the quarry pit to remain open before 1980 and after 2010”. Further, they conclude that the base of the quarry was approximately 280.7m AHD on the basis of the survey plan included at Attachment 11 of the EIS, drawing reference: 12071.7C (Exhibit A).

107. The experts agree that the completion of quarrying activities on the site of the current development means is that the weathered material that one would expect to have found, at least to a certain degree, above the aquifer rock, has been removed prior to the placement of waste in Cells 1 & 2. They agree this weathered material has not been quarried in the proposed location of Cell 3.

Permeability of material underlying proposed Cell 3

108. The experts agree that the proposed site of Cell 3 is underlain by low permeability extremely weathered to highly weathered rock as demonstrated in the bore logs included in the an attachment to the EIS.

109. The bore log at location ‘P2’ is located in the valley, where cell number 3 is proposed. It indicates that the bore met ground water at 12m. It is Mr Lane’s evidence is that the “clayey sand” and the “extremely weathered dacite” material, nominated in the bore sample as being at a depth of between 1.5 and 5.5m below ground, form a barrier to the transfer of leachate to the aquifer.

110. The experts agree, however, that this material is not impervious. Mr Lane explains in his oral evidence that both materials, the “clayey sand” and the “extremely weathered dacite”, would allow water to move very slowly in it. It is Mr Jewell’s evidence that:

“It's (the extremely weathered material) is a natural material which has a degree of natural variability in it, and water will slowly move down through it.”

(Transcript Friday 17 August 2018, page 117).

111. The disagreement between the experts is the time taken for such movement of leachate and the whether dilution and attenuation of contaminants would render such movement of null impact to the aquifer.

112. The experts agree that the demand to manage leachate will vary over the life of the facility. It was Mr Lane’s estimate that following the completion of landfilling, and capping of the cell, the site will become a ‘dry tomb’ at which point the waste will remain but the risk of leachate escape passes. It is his estimate that the relevant time period is in the order of thirty years.

113. The EPA notes in their November Letter that the application lacks detail of the potential composition of the leachate. In particular, they note the revised EIS “…does not provide a characterisation of the discharge in terms of concentrations and loads of pollutants or assess the potential impact of these on the environmental values of the receiving waters” (Exhibit 2).

114. In his oral evidence, Mr Jewell also raised concern, as he put it, about the lack of data in the EIS on the chemical characteristics of the waste that is being transported from Visy (Transcript Friday 17 August 2018, page 170).

Results at Monitoring Bore P1

115. A key issue in the discussions of the hydrogeologists’ is the cause, effect and significance of changes in the ground water chemistry and ground water levels at the existing monitoring bore P1.

116. The leachate and groundwater monitoring is a requirement of the NSW EPA Environmental Protection Licence No. 20297 issued to M.H. Earthmoving Pty Ltd relating to Burra Road Landfill for Cells 1 & 2.

117. Council, in its Statement of Facts and Contentions, argues that:

“monitoring data referred to by the EPA shows the ground water quality has progressively degraded downgradient from the site” and that “the findings of the Hydrogeological and Land Assessment report, the University of New South Wales Peer Review, and the report of the Office of Environment and Heritage in relation to water quality at testing point P1, which accompanied the DA, indicate considerable scientific uncertainty regarding whether the proposal will adversely impact groundwater quality” (Emphasis added) (Exhibit 1).

118. The Applicant’s EIS, at Section 9.8.5, relies on the results of two expert assessments. The first was conducted by the University of New South Wales. The EIS notes that the key findings of this review state that:

“The reports by DM McMahon … provide sufficient hydrological and hydrogeological data to implement updated environmental monitoring and management plans for the site to support site closure and/or a regulatory assessment of the merits of the proposed landfill expansion development.”

(Exhibit A)

119. The University of New South Wales review recommended a number of additional tests and measures, which were implemented and an independent analysis report was sought from the Office of Environment and Heritage (OEH). The findings of the OEH confirm that:

“the monitoring data collected to date has not found unequivocal evidence of the leachate migration to P1 from the landfill. There is also no direct evidence of transfer pond leakage affecting P1 water quality, based on single data set.”

(Exhibit A)

120. The November Letter from the EPA, and its attachment, identify the potential risk on ground water quality from the development. In relation to the change in water quality parameters at P1, the November Letter states (in part):

“…

It has been established that an increase in salinity and major ions has occurred since the construction and operation of the landfill cell within the former quarry. The EIS concludes that, at present, “there is insufficient data to verify the cause of the change in water quality at P1”. Despite this data gap, no new lines of evidence are provided in the EIS. Analysis is limited to an updated desktop assessment of monitoring data, which has previously proven inconclusive. No new monitoring points were installed, water quality around P1 was not delineated, an no other, cost effective, techniques were used to establish the cause of the water quality changes (e.g. geochemical reaction modelling, laboratory bench trials, geophysical liner assessments).

In the absence of a sound explanation of the processes controlling ground water at P1, it must reasonably be assumed the changes are a result of existing operations. By extension, it must also be assumed that further development could also impact ground water quality at this site.

…”

(Exhibit 2)

121. The First Respondent in the proceedings procured a report from Coffey Environments Australia Pty Ltd in May 2018 (the Coffey report), which in part considers the monitoring results at P1. The Coffey report notes the primary issue to resolve as: “Has the changing ground water quality and levels at P1 resulted from the failure of the existing landfill lining system, or are there other causes that satisfactorily explain the observations?” (Exhibit B). The Coffey report concludes that:

“The available information does not provide convincing evidence that the changes observed at bore hole P1 have resulted from the failure of the landfill liner. Rather, the changes in physical hydrogeology over time can satisfactorily explain the observations.”

(Exhibit B)

122. Mr Lane argues that for Bore P1 to be impacted by leachate from Cells 1 or 2, the following conditions would be needed:

“a) Leachate would need to have accumulated on the liner of the cells to provide a driving “head” of leachate into the liner.

b) The cell liner consisting of 900mm of compacted low permeability clay constructed under quality control conditions (See EIS Attachment 11 CQA Report April 2017) would need to leak via a defect in the liner.

c) Seepage of leachate downward through the liner, if it had no defects, would be slow and take of the order of several years.

d) The defect in the liner would need to coincide with an area of fracturing in the fresh rock to allow percolation to groundwater.

e) Seepage of leachate downward through the approximately 10 m thick dacite rock (fractured) underlying the landfill liner would be slow and take of the order of several additional years unless fractures coincide with defect in which case it could be relatively quick (weeks to months).

f) Contaminated seepage having moved though the 900 mm liner and the 10m thick dacite zone and into the underlying aquifer would need to move laterally in the groundwater flow.

g) The time needed for contaminants to move from a point in the aquifer beneath the landfill to encounter bore P1 would be of the order of one to two years.

139. The applicant submits that the EIS Guidelines, and in particular the locational criteria detailed in Table 1 (refer to [42(1)]) have not been consistently applied. In particular, the applicant relies on the EPA’s grant of General Terms of Approval on two landfills: the Blaxland Resource Recovery and Waste Management Facility; and the Albury Waste Management Facility (Exhibit H) and the approval of Cells 1 & 2 on the subject site overlying the same aquifer as Cell 3. They note that these approvals all demonstrate inconsistency of the application of the “List of environmentally sensitive areas to be avoided” detailed in Table 1 of the EIS Guidelines.

140. In regards to the Blaxland Resource Recovery and Waste Management Facility, the applicant submits:

“… the description of the proposal was involving ‘re-diversion of Cripple Creek to the north of the existing landfill mound to overcome current surface water pollution from landfill leachate’ and that this required a permit under the Fisheries Management Act 1994 because it would involve dredging and reclamation works in the creek” (Applicants written submissions, 22 August 2016, at par 73).

144. In regards to the Albury facility, Mr Howard and Ms Novak draw attention to the proposal which describes that: “an un-named creek that flows through the site would be diverted around the site and ground water at a minimum depth of 10m”. However, they note that the Court heard no evidence of about the quality of the ground water.

145. Mr Howard and Ms Novak argue that the sole reason put by the SRPP to warrant refusal is “the risk that leachate from the proposed new Cell 3 might leak through the leachate barrier and contaminate the aquifer which lies 9-12m below the floor of the cell”. They submit that an “orthodox planning approach to the assessment of the alleged risk of contamination to the aquifer would result in the approval of the development proposal because of the improbability of there being any unacceptable impact on ground water” (Applicants written submissions, 22 August 2016, at pars 40 and 42).

146. The applicant submits that, applying the principles in Stocklands v Manly Council (2004) 136 LGERA 254 at [92], the inconsistency in application of the locational criteria in the EIS Guidelines should diminish the weight given to them by the Court. Further, they argue that the obligation of the Court (at cl 123 of SEPP Infrastructure) is the “take into consideration” the locational criteria and that the guidelines do not have the effect of a “de facto prohibition”, but rather to guide site selection (Applicant’s written submissions, 22 August 2016, at par 81).

147. It is the submission of Mr Howard and Ms Novak that the alleged possibility of groundwater contamination by leachate arising from carrying out the development is unlikely (or on the evidence of Mr Lane, highly unlikely). They emphasise that both experts agree that:

“(a) it is unlikely that leachate will leak through the leachate barrier so as to enter the aquifer which is located 12- 19 metres below the proposed floor of Cell 3;

(b) any leakage of leachate – even in the unlikely event it were to leak through the leachate barrier would be unlikely to have any impact on ground water in the aquifer below the cell due to attenuation by the weathered dacite; and

(c) even if both of the unlikely contingencies above materialised, it would be unlikely that there would be any impact to the groundwater in the locations of extraction at the limited number of bores that use the aquifer in the general locality because of various factors, including their distance from the site and the dilution due to dispersion of any contaminants in the ground water and inflow to any pumping bore from alternative sources of water in the fractured rock aquifer”

(Applicant’s written submissions, 22 August 2016, at par 107)

148. In addressing the evidence of the experts in relation to the changes in the ground water chemistry and ground water levels at the existing monitoring bore P1, Mr Howard argued in his opening that the consensus of scientific opinion, other than Mr Jewell, is that there is an alternative cogent explanation, other than leachate migration, for the elevation in levels in the monitoring bore at P1.

SRPP Submissions

149. In their written submission, Mr Leggat and Mr Nash emphasise that the site is fundamentally unsuitable for the development proposed, and that as a result of the EIS Guidelines (and in particular Table 1: List of Environmentally Sensitive Areas to be avoided), should have been excluded from consideration for the expansion of the Burra Road facility at the outset.

150. Mr Leggat and Mr Nash argue that pursuant to cl 123(1)(c)(ii) of SEPP Infrastructure, the EIS Guideline is a mandatory relevant consideration in the assessment of the Cell 3 landfill proposal. They state:

“The proposal is unquestionably ‘permissible’ as a matter of law, by operation of the Gundagai Local Environmental Plan 2011 and the Infrastructure SEPP. The EIS Guideline, however, expressly recognises that although a landfill proposal may be ‘permissible’ on a particular site, issues of ‘site suitability’ must remain at the forefront of any environmental assessment.”

(Second respondent’s written submissions, 17 August 2018 at par 6)

151. Further, Mr Leggat and Mr Nash argue that it is only appropriate, or necessary, to consider engineered solutions which are designed to prevent, minimise or mitigate pollution impacts (such as those arising from the escape of leachate) if a site is not a ‘site to be avoided’ as documented in Table 1 of the EIS Guidelines.

152. In his opening submission, Mr Leggat underscored the consistency of the approach taken by Table 1 of the EIS Guidelines, the approach of the EPA in their November letter and the Landfill Guidelines. It is his submission that each of these emphasise that the primary environmental control is judicious choice of landfill location. He references the following extract from the Landfill Guidelines:

“Siting Restrictions

Location is an important factor in determining the environmental risk posed by a landfill. Judicious location of a landfill is the single most effective environmental management tool.

Some minimum standards is these guidelines will be easier to achieve, and some design elements may even be omitted, by selecting a site where natural barriers (e.g. hydrogeological barriers) protect environmental quality and where the separation distances to sensitive receptors ensure that there will not be adverse impacts on existing and future development. The risk of leachate contamination increases where the site is in poor hydrogeological conditions, near sensitive water bodies such as wetlands, or near water sources used for drinking, irrigation, industrial use or stock watering.”

(Exhibit 2, tab 10)

153. Given that Table 1 of the EIS guidelines (extracted at [42]) includes: “sites located… in an area overlying an aquifer which contains drinking water quality ground water which is vulnerable to pollution” as an area to be excluded from further consideration from the outset; Mr Leggat and Mr Nash submit that there are three elements to be considered by the Court in determining whether the site of Cell 3 is suitable for the development proposed:

1. Is the site overlying an aquifer?

2. Does the aquifer contain drinking water quality ground water?

3. Is the aquifer vulnerable to pollution?

(Second respondent’s written submissions, 17 August 2018 at par 11)

154. Mr Leggat and Mr Nash rely on the following definition from the Macquarie Dictionary:

“vulnerable/ ˈvʌlnrəbəl, -nərəbəl/ adjective 1. susceptible to being wounded; liable to physical hurt. 2. not protected against emotional hurt; highly sensitive. 3. not immune to moral attacks, as of criticism or calumny, or against temptations, influences, etc. 4. (of a place, fortress etc.) open to attack or assault; weak in respect of defence. 5. Contract Bridge exposed to greater than usual penalties (applied to the partners who have won one game towards a rubber). [Late Latin vulnerābilis wounding] –vulnerability /vʌlnrəˈbɪləti/-nərə-/ vulnerableness, noun –vulnerably, adverb”

155. They argue that it is not necessary to establish that pollution will (as matter of fact) occur but rather that: “ ‘Vulnerability’ involves notions of susceptibility – i.e. there is a potential for leachate to enter the ground water” (Second respondent’s written submissions, 17 August 2018 at par 16).

156. Mr Leggat and Mr Nash argue that on the evidence before the Court the site of Cell 3 overlies an aquifer of agreed drinking water quality, and on the evidence of Mr Jewell that aquifer is vulnerable to pollution from leachate escaping the landfill. They argue on these grounds the site is unsuitable for the development proposed (pursuant to s 4.15(1)(c) of the Act), inconsistent with the EIS Guidelines in a circumstance where a variation to them has not been justified, and should be refused by the Court.

157. Mr Leggat and Mr Nash conclude that, when the Court considers the totality of the evidence, it is sufficient to demonstrate that the chosen site for Cell 3 is associated with an unacceptable risk to the receiving environment and the application should be refused notwithstanding the economic and other asserted benefits of the proposal.

Evaluation of the merits of the application

158. In evaluating the merits of the application, s 4.15 of the Act requires the consent authority, amongst other factors, to consider the provisions of the relevant environmental planning instruments. As noted at [31] cl 123 of SEPP Infrastructure provides a number of matters for consideration.

159. I am satisfied on the evidence that the Visy operation, which is the source of the material proposed to be landfilled at the subject site, has a suitable level or resource recovery to minimise material placed in landfill (cl 123(1)(a) SEPP Infrastructure). I have drawn this conclusion on the following reasoning:

1. The EIS describes the waste material proposed for Cell 3 as follows:

“The waste material is primarily an unrecyclable inert product generated from a paper recycling process undertaken by Visy. Over 220,000 tonnes per year of recycled paper and cardboard are processed at the Visy Tumut plant, of which 85% become recycled products and the remaining 15% requiring disposal to landfill. Other waste included in the subject landfill waste stream is a by-product of the Visy Mill pulp and paper production process, also classified as inert non-putrescible waste.

…

the majority of waste is Paper Machine Rejects (74%), which equates to 44,400 tonnes per year, if the proposal to increase the maximum waste deposition rate is approved. The volume of dregs and grits to be disposed of is calculated to be approximately 11,400 tonnes per annum (19%) and the remaining 4,200 tonnes (7%) comprising of fly ash and boiler sand.”

(Exhibit A)

2. The requirement for waste used in the landfill to only be sourced from the Visy paper mill at Tumut is also a condition on the site’s existing EPA license.

3. On 7 July 2017, Visy secured a modification approval for their operations at Tumut. Extracts of the application documentation, and the resulting approval, are appended to the joint report of the planning experts. Relevantly, this documentation notes that 48% of the wastepaper recycled at the plant is contaminated, and that 80-90% of the rejects/contaminants are plastic. This accords with my visual inspection of the site at the commencement of the hearing.

4. In approving the modification application for the Visy plant, the NSW Department of Environment and Planning included the following requirement by condition:

“5.4(f)   An updated Solid Waste Management Plan for the existing plant (DA/6/98) and the project (06_0159), as modified, in consultation with the EPA, and to the satisfaction of the Secretary. The plan must:

i. describe the type, quantity, handling, storage and disposal of all waste streams generated on site, consistent with the Protection of the Environment Operations Act 1997, Protection of the Environment Operations (Waste) Regulation 2014and the Waste Classification Guideline (Department of Environment, Climate Change and Water, 2009);

ii. describe how waste is managed in accordance with the EPA’s waste hierarchy for the life of the existing plant and project;

iii. include a landfill diversion that:

a. investigates reuse and recycling opportunities and identifies the approvals required for these activities;

b. etails timeframes for the implementation of reuse and recycling activities;

c. includes a monitoring program to measure the volume and composition of waste captured by the reuse and recycling activities and the waste sent to landfill;

iv. detail the contingency measures to ensure suitable management and disposal of waste …”

(Exhibit 4)

5. I am satisfied that the preceding is sufficient to demonstrate a suitable level of resource recovery to minimise material placed in landfill at the proposed Cell 3.

160. Clause 123(1)(b)(i) of SEPP Infrastructure requires the consent authority to consider whether the landfill adopts “best practice landfill design and operation”. I note that the hydrogeology experts agree that the proposed design of Cell 3 accords with the standards imposed for a solid waste landfill, including putrescible waste, in the Landfill guidelines. On this basis, I am satisfied that the proposal meets this provision, in terms of its technical design, subject to my findings following on the appropriateness of the siting of the proposed waste cell.

161. Further, I am satisfied that the development satisfactorily reduces the long term impacts of the disposal of waste from greenhouse gases and odour impacts (cl 123(1)(b)(ii) of SEPP Infrastructure). My reasoning is as follows:

1. This matter is addressed within the EIS report (Exhibit A) at Section 9.3. The assessment of sources of greenhouse gas emissions concludes that the most significant source would arise from waste decomposition, but that capture is not feasible on the following reasoning:

“As the proposed waste is considered to be a general, non-putrescible solid waste, it is not anticipated to produce significant amounts landfill gas. Therefore, a formal gas collection and treatment system is not currently proposed for Cells 1, 2 or 3.”

(Exhibit A)

2. Within the EIS the conclusion of the assessment of potential odour impacts arising from the development on adjoining properties is:

“Air quality impact assessment modelling suggested that cumulative odour ground level concentrations above the standard set for rural environments will not be encountered at any identified sensitive receptors. The cumulative contributions of odour have included the adjacent Council landfill and capped Cells 1 & 2 of the existing waste disposal facility.”

(Exhibit A)

3. Neither odour impacts, nor management of greenhouse gas emissions, from the proposed use are issues contended by the Respondent.

162. At cl 123(1)(c), the matters for consideration include: whether the land on which the development is located is degraded; and whether the development is sited to avoid land use conflicts, including whether it is consistent with any regional strategies or locational principles located in the EIS Guidelines.

163. The SRPP’s principal argument is that the application fails to satisfactorily address this provision, and that the consequently the subject site is unsuitable for the development proposed. In addition to the evidence summarised in the proceeding, I sought, by agreed Directions, additional information from the Application overlaying the proposed location of Cell 3 on the available historical aerial photography. I am satisfied that this material accords with the evidence of Mr Salvestro, that the proposed location of Cell 3 was subjected to quarrying activities (such as vehicular access), but I am satisfied that no indication of the actual quarrying of material in the area of proposed Cell 3 is demonstrated in the evidence.

164. The EIS notes the “the proposed new waste cell is to be established contains highly degraded ephemeral gullies” (Exhibit A). It is also Mr Salvestro’s evidence that the “proposed earthworks and gully diversion are designed to provide a net environmental benefit to the catchment”. Mr Perica’s evidence is that the site of proposed Cell 3 is “moderately sloped, with erosion evident. The land is susceptible to degradation from the land fill on the site and past quarrying activities (apart from the proposed expansion)” (Exhibit 4).

165. I prefer the evidence of Mr Perica and find the land on which the development is proposed to be located, whilst showing evidence of erosion and susceptibility to soil degradation, is evidently in a less degraded state that the land now occupied by Cells 1 & 2.

166. I find there is a clear distinction between the pre-approval degradation of the existing quarry, now Cells 1 & 2, and the condition of the land proposed for Cell 3. I am satisfied it is appropriate to give this distinction weight in the application of the EIS Guidelines as a matter for consideration under cl 123 of SEPP Infrastructure.

167. Further, the proposed site design of Cell 3, in its final form, involves a transformation of the existing gully landform, and a substantive redirection of water flows to bypass the proposed Cell 3. I do not accept the evidence of Mr Salvestro, or the conclusion of the DM McMahon Pty Ltd Report: ‘Hydrogeological, Hydrological and Land Assessment’ (Attachment 7 of EIS) that: The final capping layer will be formed to be consistent with the surrounding landform (Exhibit A).

168. Following the site view, a review of the Creek Diversion Plan Layout and Sections prepared by SLR Consulting, consideration of the Closure and Rehabilitation plan (at 11.3 of the EIS) and the submissions, I prefer the evidence, and the conclusions of Mr Perica, that the subject site is susceptible to degradation, but not degraded to the extent foreseen by cl 123(1)(c) where rehabilitation by such a proposal may result in a net positive outcome.

169. On this basis, the final design of proposed Cell 3 is in plain contrast to the comparative rehabilitation of the subject site of Cells 1 & 2, which was previously quarried. The final form of that Cells 1 & 2 seeks to reinstate a capped level of approximately RL 294, aligning with the top of the current lip of the pit. This is in contrast to the final design of Cell 3, which will remove the existing gully landform, and redirect water flows around the site, both detrimental impacts arising from the development.

170. Further, I accept the submissions of Mr Leggat and Mr Nash that the proposed development of Cell 3 is also inconsistent with the matters for consideration at cl 123(1)(c) of SEPP Infrastructure. My reasoning is detailed in the following paragraphs.

171. I accept the evidence of Mr Perica (at paragraph [96]) that the development proposed is inconsistent with the locational principles contained in Table 1 of the EIS Guidelines.

172. I accept the agreed evidence of the hydrogeologist’s that ‘the proposed location of Cell 3 overlays an aquifer’ (Exhibit 5).

173. In relation to the second descriptor contained in Table 1 of the EIS Guidelines, I note that the ADWG includes two different types of guideline values:

• a health-related guideline value, which is the concentration or measure of a water quality characteristic that, based on present knowledge, does not result in any significant risk to the health of the consumer over a lifetime of consumption;

• an aesthetic guideline value, which is the concentration or measure of a water quality characteristic that is associated with acceptability of water to the consumer; for example, appearance, taste and odour.

And at Table 10.6 the ADWG relevantly states:

(Australian Drinking Water Guidelines Version 3.5 at s.1.3.2)

174. I note that the experts agree that technically the ground water extracted from the bores in proximity to the site (drawn from the aquifer) is of ‘drinking water quality’. Applying the preceding guidelines I accept their evidence.

174. I accept the submission of Mr Leggat and Mr Nash that, in the context of the EIS Guideline and the application of Table 1, ‘vulnerable’ is appropriately read as ‘susceptible’.

175. I am satisfied that, when considered in totality, the evidence of the hydrogeologists’ is concordant that: the natural material underlying the proposed Cell 3 is not impervious (although highly weathered); if leachate was to breach the liner/s of proposed Cell 3 it would, over time, reach the aquifer. I accept the experts differ in the likelihood of that occurring, the potential effect of attenuation and dilution of the leachate and the effect of dispersion between the aquifer at the point of draw down at a bore. However, I find that the differences in the expert’s evidence are not germane to the question of the aquifer’s susceptibility to the ingress of pollution. I am satisfied that the proposed site of Cell 3 is ‘an area overlying an aquifer which contains drinking water quality which is vulnerable to pollution’. On this basis the location proposed for Cell 3 is inconsistent with the EIS Guidelines.

176. I am not satisfied by the Applicant’s evidence that:

“Ground water susceptibility to pollution from leachate is minimised through appropriate management of all sources of leachate and the leachate holding dam. Monitoring of groundwater ensures that any pollution, if it was to occur, would be detected. Remediation measures will then be put in place to prevent future pollution incidents. Flow velocities of the associated aquifer are very low, so the potential for pollution to extend beyond the confines of the landfill site without detection are negligible.” (Attachment 7 of EIS)

178. The conclusions of the hydrogeology experts is that there is no evidence of which bores would be potentially impacted if there was ingress of leachate to the aquifer, and that there is an overall lack of certainty of the behaviour of the fractured rock aquifer given its nature. This lack of evidence reduces the validity of the applicant’s conclusions that the risk of pollution extending beyond the confines of the site without detection is negligible.

179. Importantly, there is a consistency between the assessment of the risk of the use on the subject site and the weighted consequences between the evidence of Mr Jewell and the EIS (Exhibit A, page 97). The EIS applies a ‘medium’ likelihood and a ‘medium’ consequence to the risk of: Impacts to groundwater from leachate generation of the waste cell. Mr Jewel, in his evidence, allocates a ‘low’ likelihood, and a ‘high’ consequence, resulting in a moderate risk.

180. I accept the evidence of Mr Jewel that, in the absence of further knowledge of the fractured rock aquifer, and the information detailed at [132], it is appropriate to allocate ‘high’ to the potential consequence of the identified risk: Impacts to groundwater from leachate generation of the waste cell.

181. This conclusion of vulnerability is supported by the fact that the subject site is identified as ‘sensitive land’ for the purposes of cll 6.1, 6.2 and 6.3 of LEP 2011, as well as within the NSW Land and Water Conservation Groundwater Vulnerability Map (2001) regional mapping.

182. I accept the submission of Mr Leggat and Mr Nash at [151] that the thrust of the EIS Guidelines is that avoidance of risk impact is most effective by judicious choice of landfill location.

183. In forming the conclusion that the proposed development is inconsistent with the EIS Guidelines, and in particular the principles of site selection, I have given weight to the November letter of the EPA and the results from the existing P1 monitoring bore. I am satisfied on the evidence of Mr Lane and Mr Jewel that the presence of chlorine in the monitoring results at bore P1 is most likely to have arisen from egress of leachate from the existing Cells 1 & 2. Noting Mr Lane’s oral evidence was:

“the chloride is the one that's least likely to have an alternative explanation than leachate.  So chlorine is not a very abundant element in rock material, and it isn't in the dacite.  So in the absence of anything else, the only other source of it would be the leachate, which has a high chloride concentration.” 

(Transcript 17 August, par 159)

It was Mr Jewel’s conclusion that the results at P1 ‘had clearly been impacted by leachate’ (Exhibit 5).

184. In my view, notwithstanding the “beneficial” highly weathered material underlying proposed Cell 3, I am satisfied that the conclusions of the experts confirm the susceptibility of the aquifer to the receiving of leachate, and the risk of failure of an engineered solution to waste containment. I find that this, in combination with the acceptance of the experts that water (or leachate) will move through the weathered rock to the aquifer, makes the proposed site of Cell 3 unsuitable for the development proposed.

185. In forming this conclusion, I have given weight to the purpose of the exclusion of those areas identified in Table 1 of the EIS Guidelines. The guidelines state that the environmentally sensitive areas denoted in Table 1 “should be excluded from further consideration [as landfill sites] from the outset”. Further, the EIS Guidelines are clear that “it is inappropriate to locate landfills in areas of high environmental value, or in areas subject to significant environmental constraints with high environmental risks” (EIS Guidelines at 15). In relation to this development, the purpose of the exclusion is noted as: to protect ground water resources. I am satisfied that there is a moderate risk of the ground water being impacted by the development and it is inappropriate to locate a new landfill cell in the location proposed.

186. I am satisfied that it is appropriate to consider the current and future use of the bores downstream bores, for both stock and domestic use, and to give weight to the need to protect the ground water resources.

187. On the basis of the preceding reasoning I find that, pursuant to s 4.15(1)(c) of the Act that the subject site is unsuitable for the development proposed.

188. Further, pursuant to s 4.15(1)(a) of the Act, I find that the development is inconsistent with the intent and objectives of cl 6.2 of LEP 2011 as it fails to protect “landforms” at (e) and is not designed and sited to avoid adverse environmental impact.

189. Equally, I find that the development is inconsistent with the intent and objectives of cl 6.3 of LEP 2011 as it fails to protect “(b) natural water flows” and “(d) groundwater systems” and is not designed and sited to avoid adverse environmental impact.

190. I am satisfied that given the likely impacts of the development, the proposal does not warrant a variation to these provisions.

191. Further, on balance I am satisfied that the economic benefits that will arise from the proposed development (refer to Section 9.13 of the EIS, Exhibit A) do not offset the likely environmental impacts of the development (s 4.15(1)(b) of the Act) and the application warrants refusal.

Orders

192. The orders of the Court are:

1. The appeal is dismissed;

2. Development Application DA/242/2017 for the expansion of an existing General Solid Waste (non-putrescible) disposal facility at Lots 472 and 502 DP 751421 and Lot 2 DP 111917, 303 Burra Road, Gundagai is refused.

(3)   The exhibits are returned with the exception of A, B, 1, 2 and 3.

…………….

D M Dickson

Commissioner of the Court

Decision last updated: 02 October 2018